Navy Exempted From Court Order Protecting Whales

Navy Exempted From Court Order Protecting Whales

January 2008  - In an unprecedented action, 
President George W. Bush Tuesday overrode a federal court order that 
requires the U.S. Navy to minimize harm to whales and dolphins during 
sonar exercises off Southern California. Scientists say the loud blasts of 
sound emitted by Navy sonar to detect submarines harm and possibly kill 
marine mammals. 
A spokesman for the Natural Resources Defense Council, which obtained the 
court order, says the group will appeal the Bush waiver to the Ninth 
Circuit Court of Appeals within 24 hours. 
Secretary of the Navy Donald Winter said today the Navy "already applies 
29 mitigation measures approved by federal environmental regulators when 
using active sonar, and these will remain in place." 
The issue is shaping up as a battle between the executive and the judicial 
branches of government. 
While traveling in the Middle East, President Bush signed the memo giving 
the Navy a waiver under the Coastal Zone Management Act and also allowed a 
second "emergency" waiver under the National Environmental Policy Act. 
Those laws are the basis of a January 3 injunction issued by U.S. District 
Court Judge Florence-Marie Cooper, that requires the Navy to monitor for 
and avoid marine mammals while operating high-intensity, mid-frequency 
sonar during the "SOCAL" naval exercises, now underway. 
In his memo issuing the waiver, President Bush said that the Secretary of 
Commerce made a written request Friday that the Navy be exempted from 
compliance with the order in its use of mid-frequency active sonar during 
training exercises. 
"As part of that request, the Secretary of Commerce certified that 
mediation ... is not likely to result in the Navy's compliance with the 
order. 
The president determined that the training exercises "including the use of 
mid-frequency active sonar in these exercises, are in the paramount 
interest of the United States." 

Compliance with the order "would undermine the Navy's ability to conduct 
realistic training exercises that are necessary to ensure the combat 
effectiveness of carrier and expeditionary strike groups," the president 
wrote. "This exemption will enable the Navy to train effectively and to 
certify carrier and expeditionary strike groups for deployment in support 
of world-wide operational and combat activities, which are essential to 
national security." 
"There is absolutely no justification for this," said California Coastal 
Commissioner Sara Wan. "Both the court and the Coastal Commission have 
said that the Navy can carry out its mission as well as protect the 
whales. This is a slap in the face to Californians who care about the 
oceans." 
Judge Cooper's order requires the Navy to create a 12-nautical-mile, 
no-sonar zone along the California coast and to post trained lookouts to 
watch for marine mammals before and during exercises. Sonar would have to 
be shut down when mammals are spotted within 2,200 yards, under the order. 

The judge ruled that the Navy's scheme to mitigate harm had been "grossly 
inadequate to protect marine mammals from debilitating levels of sonar 
exposure" in Southern California. 
The Bush waivers would eliminate all of the court-ordered mitigations 
under the pretext of "emergency," but the Natural Resources Defense 
Council, NRDC, says, "In fact, no emergency conditions exist: The SOCAL 
exercises are routine training drills planned long in advance, but without 
meeting legal standards." 
The exercises were challenged in court by the California Coastal 
Commission and the NRDC a year ago. 
Judge Cooper did not issue a blanket injunction, but instead produced a 
tailored order that enables the Navy to conduct sonar training using 
mitigations and monitoring, many of which the Navy has already employed in 
previous exercises. 
"The president's action is an attack on the rule of law," said Joel 
Reynolds, director of the Marine Mammal Protection Project at NRDC. "By 
exempting the Navy from basic safeguards under both federal and state law, 
the President is flouting the will of Congress, the decision of the 
California Coastal Commission, and a ruling by the federal court." 
Both waivers must survive court review for the Navy to legally ignore the 
injunction. However, the waiver under NEPA is illegal, according to NRDC, 
because that statute does not include an escape clause for the executive 
branch, as some statutes do.

"This is not a national security issue. The Navy doesn't need to harm 
whales to train effectively with sonar. It simply chooses to for the sake 
of convenience," said Reynolds. 
"By following the carefully crafted measures ordered by the court, the 
Navy could conduct its exercises without imperiling marine mammals, 
Reynolds said. "Instead, it is attempting to circumvent the court and our 
environmental laws through presidential fiat. These waivers are 
unnecessary and we doubt they will both survive judicial review 
"We are already taking extensive measures to protect marine mammals, and 
we have had positive results from those measures," said Winter. "We are 
furthermore committed to an extensive data collection effort to help 
inform our future efforts in this regard." 
Chief of Naval Operations Admiral Gary Roughead said that the actions were 
necessary in order to ensure the Navy's ability to train sailors to detect 
quiet submarines that might threaten its ships. 
"We cannot in good conscience send American men and women into potential 
trouble spots without adequate training to defend themselves," said 
Roughead. 
"The southern California operating area provides unique training 
opportunities that are vital to preparing our forces, and the planned 
exercises cannot be postponed without impacting national security," said 
Roughead. "The steps that have been taken will allow our men and women to 
train realistically, while continuing the effective employment of proven 
mitigation measures that have been endorsed by the Council on 
Environmental Quality and our regulator, the National Marine Fisheries 
Service." 

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